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2012 DIGILAW 245 (DEL)

A. K. SABHARWAL v. STATE

2012-01-23

A.K.PATHAK

body2012
JUDGMENT A.K. PATHAK, J. 1. By way of this petition under Section 276 of the Indian Succession Act, 1925, petitioner seeks probate of Will dated 19August, 1983 left behind by Late Shri Mohan Lal L. Bajaj (hereinafter referred to as „the deceased?). 2. Petitioner is one of the executors of the said Will. Respondent nos. 2 to 4 are sons; whereas respondent nos. 5 and 6 are daughters of the deceased. None of the respondents have filed objections to the grant of probate. On the contrary, respondent nos. 2 to 4 have filed affidavits in evidence thereby acknowledging the genuineness and correctness of the Will dated 19August, 1983 as well as Codicil dated 18October, 1983 executed by the deceased. They have also been cross-examined by the petitioner?s counsel in Test Case No. 01/2003 order to identify the signatures of the testator and witnesses on the Will and Codicil. 3. It is alleged in the petition that the deceased had executed a Will dated 19August, 1983. Subsequently, another Will dated 4October, 1983 was executed by the deceased. However, the subsequent Will dated 4October, 1983 was revoked by the testator/deceased vide Codicil dated 18October, 1983. Thus, Will dated 19August, 1983 was the last Will and Testament of the deceased. Will dated 19August, 1983 was executed by the testator in the presence of Shri Vinod Kumar and Shri Y. Vasudeva Rao, who had appended their signatures thereto as witnesses. Petitioner was surprised on receiving summons to appear in Court in Probate Case No. 52/1987 to prove Will dated 4October, 1983. Petitioner filed an application under Order 1 Rule 10 (2) read with Section 151 CPC in the said case in order to bring to the notice of the Court that Will dated 4October, 1983 had been revoked and, in fact, Will dated 19August, 1983 was the last Will of the deceased and it is this Will which was to be probated. However, during the course of hearing of the said application, it was pointed out that a separate case has to be filed by the petitioner to obtain probate of Will dated 19August, 1983. Accordingly, present petition has been filed. 4. It may be noted here that Test Case no.52/1987 was filed by the respondent nos. 2 to 4 herein seeking probate of Will dated 4October, 1983 and the said case has since been withdrawn by them on 29September, 2011. 5. Accordingly, present petition has been filed. 4. It may be noted here that Test Case no.52/1987 was filed by the respondent nos. 2 to 4 herein seeking probate of Will dated 4October, 1983 and the said case has since been withdrawn by them on 29September, 2011. 5. Citation has been published in the newspapers “The Statesman” (New Delhi Edition), “The Asian Age” (Mumbai Edition) and “The Hindu” (Bangalore Edition). No one has filed objections against the grant of probate despite publication of the citation. 6. Petitioner has examined himself as PW1. He has filed his affidavit in examination-in-chief. He has been cross-examined by the counsel for respondent nos. 2 to 4 but his testimony in examination-in-chief has remained unshaken and/or unshattered. PW-1 has categorically deposed that Late Shri Mohan Lal L. Bajaj died on 9November, 1983 at Banglore but at the time of his death he had a permanent place of residence at R-898, New Rajinder Nagar, New Delhi – 110060. The deceased has left behind the properties as mentioned in the schedule of properties, annexed to the petition as Annexure C. Late Shri Mohan Lal L. Bajaj had executed a Will dated 4October, 1983 but same was revoked by him vide Codicil dated 18October, 1983. He has identified the signatures of the deceased on Will dated 19August, 1983 and Codicil dated 18August, 1983. As per the Will, Shri A.P. Manglani was also one of the executors of the Will. However, he had shown his unwillingness to join the petition. Accordingly, petition was filed by him. He had no interest in the estate left behind by the deceased except that he was to administer the Will as per the wishes of the testator/deceased. One of the witnesses to the Will had expired and other witness was not traceable despite best efforts made by him. His testimony on material points has remained unshattered in his cross-examination. Counsel for respondent nos. 2 to 4 has failed to point out any discrepancy in the statement of PW1, which may be sufficient to make him untrustworthy and unreliable, inasmuch as, respondent nos. 2 to 4 have themselves admitted the existence, genuineness and correctness of Will dated 19August, 1983 (Exhibit RW 1/PA) and Codicil dated 18October, 1983 (Exhibit RW 1/PB). 7. Respondent nos. 2 to 4 have also filed affidavits. Respondent nos. 2 to 4 have themselves admitted the existence, genuineness and correctness of Will dated 19August, 1983 (Exhibit RW 1/PA) and Codicil dated 18October, 1983 (Exhibit RW 1/PB). 7. Respondent nos. 2 to 4 have also filed affidavits. Respondent nos. 2 to 4 have admitted the existence of both the Wills dated 19August, 1983 and 4October, 1983 executed by their father Late Shri Mohan Lal L. Bajaj. They have also admitted Codicil dated 18October, 1983 whereby deceased had revoked Will dated 4October, 1983. Respondent nos. 2 to 4 have categorically deposed that Will dated 19August, 1983 left behind by their father has to be taken as his last Will in view of Codicil dated 18October, 1983. They have also deposed that they have no objection if probate is granted to the petitioner in respect of Will dated 19August, 1983 left behind by the deceased. Respondent no.3, in his cross-examination, has deposed that Codicil Ex. RW1/PB bears the signatures of his father at point X5. Codicil also bears the signatures of Shri Vinod Kumar at point Y3. He has also identified the signatures of witness Shri S.K. Maheedhara. He has also identified the signatures of his father as well as witnesses to the Will (Ex. RW1/PA), namely, Shri Vinod Kumar and Y. Vasudeva Rao. He has deposed that Shri Vinod Kumar has passed away. As regards Shri S.K. Maheedhara and Shri Y. Vasudeva Rao, he has deposed that their whereabouts were not known to him. He has deposed that these witnesses were his employees and he had seen them signing and writing. To the similar effect are the testimonies of respondent nos. 2 and 4. They have also identified the signatures of their father as well as that of Shri Vinod Kumar and Shri Y. Vasudeva Rao on the Will dated 19August, 1983. They have also identified the signatures of their father and also of witnesses on the Codicil. From their testimonies, it appears that Shri Vinod Kumar, Shri Y. Vasudeva Rao and Shri S.K.Maheedhara had been working with their father and respondent nos. 2 to 4, were associated with their father?s business, thus, they had seen them signing and writing in the course of their official duties. 8. From their testimonies, it appears that Shri Vinod Kumar, Shri Y. Vasudeva Rao and Shri S.K.Maheedhara had been working with their father and respondent nos. 2 to 4, were associated with their father?s business, thus, they had seen them signing and writing in the course of their official duties. 8. In ordinary course, Will must be proved by at least one of the attesting witnesses to the Will in view of the provisions of Section 63 of the Indian Succession Act, 1925 coupled with Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as “the Act”). However, Section 69 of the Act further provides that if no such attesting witness is found, then it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signatures of the person executing the document is in the handwriting of that person. For the sake of ready reference, Section 69 of the Act is quoted hereunder:- “Proof where no attesting witness found -If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.” 9. In Babu Singh and Others vs. Ram Sahai @ Ram Singh (2008) 14 SCC 754, Supreme Court has held that in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search, only in that event, the Will may be proved in the manner indicated in Section 69 i.e. by examining witnesses who were able to prove the handwriting of the testator or executant. In R. Vasanthi vs. Janaki Devi (1993) 3 CTC 378, it was held that if none of the attesting witnesses are available, witness identifying signature of attestor may be examined under Section 69. Evidence of identifying witness has to be taken as valid execution and attestation. 10. In this case, sufficient material has come on record that none of the attesting witnesses were available to make a deposition in the court. Evidence of identifying witness has to be taken as valid execution and attestation. 10. In this case, sufficient material has come on record that none of the attesting witnesses were available to make a deposition in the court. Shri Y. Vasudeva Rao and Shri S.K. Maheedhara were not traceable despite best efforts of the petitioner as well as respondent nos. 2 to 4 and Shri Vinod Kumar had died. Accordingly, Will dated 19August, 1983 as well as Codicil dated 18October, 1983 stands proved by the petitioner as well as respondent nos. 2 to 4 by establishing the signatures of the testator and the attesting witnesses. 11. From the evidence led as also the admissions made by the respondent nos. 2 to 4, petitioner has succeeded in proving that the deceased had executed a Will dated 19August, 1983 and the same is last Will and Testament of the deceased. No evidence has been led by any of the respondents to show that the deceased was not in a sound and disposing state of mind at the time of executing the Will nor did they bring out any suspicious circumstances surrounding the execution of the Will. 12. For the foregoing reasons, I grant probate of the Will dated 19August, 1983 of Late Shri Mohan Lal L.Bajaj to the petitioner, subject to the valuation of the properties, if not already done and on petitioner?s paying requisite court fees and furnishing administrative bond with one surety to the satisfaction of the Registrar General of this Court. 13. Petition is disposed of in the above terms.